Minister K Shanmugam appears to lack understanding of case where judge found bodycam footage debunked police officers’ sworn affidavits – The Online Citizen Asia

SINGAPORE — The Minister for Home Affairs and Law, K Shanmugam told the Parliament on Tuesday (7 Feb) that the Ministry of Home Affairs (MHA) holds a “different view” on the High Court judgement that found a man was wrongfully imprisoned for less than a day in 2017 and awarded him S$20,000 by the High Court last month for damages after the presiding judge found that a Singapore Police Force (SPF) officer had “acted in bad faith in apprehending” the man.

The Minister was responding to questions filed by Mr Ang Wei Neng, MP for West Coast Group Representation Constituency (GRC), Bishan-Toa Payoh GRC MP Saktiandi Supaat and Non-Constituency MP Leong Mun Wai over the judgement.

Both Mr Ang and Mr Saktiandi asked questions related to whether the police will consider reviewing its operating procedures, while Mr Leong wanted to know what lapses had occurred in the case involving Mr Mah and if any action will be taken against the officers involved.

Mah Kiat Seng, who was imprisoned for less than a day by the police, had allegedly touched the head of a stranger’s four-year-old child. The child’s mother later called the police.

Mr Shanmugam said, “On the specifics of this case, we do have some concerns about the judgment that has been delivered in this respect. The Court found that detained subject had unusual behavior, but that those did not qualify as symptoms of someone with a mental disorder. But the police officer was just equally observing and had to make decisions on the ground. The court also said that the officer took a dislike to the detained person and that the officer had made up observations about him.”

He added, “We are looking closely at the Court’s reasons for reaching these conclusions. Police tell me that they take a different view. Police and the agency will look at these points and decide whether the court’s decision should be appealed. In deciding what to do, we have to. We bear in mind that decisions and individual cases, court decisions can have a much larger and unintended effect of negatively impacting how officers react in future to such situations.”

“We are studying the court’s comments carefully. We will then decide whether to file an appeal, filed an application for permission to appeal or make changes to the law if necessary, to address any gaps that may have arisen between the policy intent and the position in law. If we reach the conclusion that the Court’s findings are in fact as advised by AGC, reasonable and correct, then we will have to internalize that and make sure the key points are made clear to our officers so that they understand the situation better,” said Mr Shanmugam.

The minister contended that unfair criticism of police officers and their operating procedures would lead to “defensive policing”.

Mr Shanmugam then said that it would be unrealistic for the police to bear up to public scrutiny with the benefit of hindsight for every decision and move and that officers must be given “sufficient latitude” to make swift ground assessments and decisions done in good faith.

If police officers have their actions unfairly critiqued, it will inevitably undermine public trust in the police and lead to “defensive policing” which would then have a detrimental effect on Singapore’s safety and security, said the Minister.

The findings of the Court

Now for those who are unaware,  Mah had to appeal his case after the previous judge threw his case out on the basis that she had believed the accounts of the officers as stated in their sworn affidavits.

Justice Valerie Thean wrote in her judgement:

There is no basis to suggest that SSgt Rosli had lied about his interaction with Mr Mah. SSgt Rosli’s evidence was consistent with the opinion of the female complainant and the Suntec City security personnel. Moreover, SSgt Rosli’s observation of Mr Mah’s incoherence was corroborated by Dr Lim’s medical notes.

Inspector Tan, the Investigation Officer assigned, also affirmed that SSgt Lawrence Tan was not one of the officers who escorted Mr Mah on 7 July 2017, nor was there any need to escort Mr Mah to any other cell for toilet facilities as there was a toilet in the cell where Mr Mah was placed in custody.

However, Judicial Commissioner Philip Jeyaretnam, who heard the appeal, after viewing the footage obtained by Mah against the objection of the Attorney-General’s Chambers (AGC), found that the police officer who had arrested the man had made up things said in his affidavit and that the basis for arresting Mah was unfounded.

What JC Jeyaretham had to say about SSG Rosli

“The video and other evidence adduced at trial has led me to conclude that not only did Mah not talk to himself when being interviewed by the apprehending officer, neither did he do so when he was seen by the medical practitioner at the lock up, contrary to the medical report on which the learned Judge relied in refusing leave.”

“I find that Rosli made up the observation that Mah was “mumbling to himself” and made it on the night of the apprehension. This was not his only embellishment. Rosli also claimed that Mah spat into a plastic bag but this was not captured on the BWC footage nor was any plastic bag containing spit found later. I do not accept the AG’s submission that such a despoiled bag might have been in Mah’s bag but was overlooked by the police when they searched it at the lock up. Rosli further claimed that Mah described himself as “OCD”. Mah has denied doing so. No such description was captured on the BWC footage although there were some interactions that were not captured because the battery apparently ran out. However, on this point I again accept Mah’s account. Having heard Mah both as witness and litigant-in-person, this is not the sort of description Mah is likely to have applied to himself. Moreover, it is hard to see how a person describing themselves as OCD would fortify even a lay person’s belief that that person was dangerous by reason of mental disorder.

I conclude that Rosli did not have an honest belief that Mah was a danger to other persons by reason of mental disorder. I find that Mah’s behaviour as shown in the BWC footage did not suggest that he was dangerous to others, and as far as soundness of mind is concerned only showed a degree of eccentricity falling far short of appearing mentally disordered.

After viewing the CCTV footage, JC Jeyaretnam found that the other officer, SSgt Lawrence Tan, whom Mah had also complained against, did not intentionally injure Mah while escorting him.

However, contrary to what was earlier told to Justice Thean by the two officers in their affidavits, Tan had indeed escorted Mah at the lock up.

And as for the account of Dr Lim Hanjie of Healthway Medical Group Pte Ltd in the Regional Lock-Up unit, whose affidavit was relied on by Justice Thean, was also disproven by the CCTV footage.

What JC Jeyaretham had to say about Dr Lim

I must note four peculiarities in Dr Lin’s medical report dated 12 September 2017. First, in his medical report written more than two months after seeing Mah (during which time by his own reckoning he would have seen many persons apprehended under s 7 of the MHCTA, roughly “a couple every day”), he wrote that Mah “did not seem to be making sense in his conversation and was constantly talking to himself” when no such observation is found in his notes made on 7 July 2017.

I did not believe his explanation that somehow he recalled this particular case and so added a critical detail from memory that was not in his contemporaneous note. Apart from my observation of his demeanour when he gave this explanation, the CCTV footage did not support the assertion that Mah was constantly or even sometimes talking to himself. Although there is no sound, Mah appears to look at Dr Lin throughout and seems to be conversing with Dr Lin, as Dr Lin acknowledged after reviewing the footage in court. Secondly, he omitted from his report that Mah complained to him of pain in his abdomen instead saying that he “had no other complaints”.

In fact, the CCTV footage shows that Mah did speak to Dr Lin about his abdomen as Dr Lin can be seen examining his abdomen. Dr Lin acknowledged this upon reviewing the footage. Thirdly, Dr Lin described Mah as being “ambulant with a normal gait” when the footage shows that Mah was supported throughout by two police officers and Dr Lin appears to have had no real opportunity to observe him walking unaided with a normal gait. Fourthly, the duration of Dr Lin’s examination is given as 11 minutes from 10.19pm until 10.30pm, when based on the CCTV footage Mah was in the consultation room for only three minutes and six seconds.

While the question of Dr Lin’s good faith is not strictly material to the outcome of this case, and he is also not a party to the proceedings, I consider that Dr Lin’s inclusion in his medical report that Mah “did not seem to be making sense in his conversation and was constantly talking to himself” raises the concern that he may have embellished his report after the fact to justify Mah’s apprehension by the police. The scheme of the MHCTA depends on the integrity of the medical practitioner just as much as it depends on the integrity of the apprehending officer.

Somewhat misleading statements

Contrary to what the Minister for Home Affairs and Law is suggesting to the Parliament that judgement of the wrongful arrest of Mah is due to the wording of the law, the grounds of the decision by the judge, as stated above, was how the officers had apparently lied in their affidavit about their observations of Mah to justify his arrest.

The Minister is, in particular, either omitting or missing the point where Mah had to file an application to obtain the CCTV and bodycam footage for his appeal because the AGC had tried to prevent the release of these footages. And the very fact that the judge had referred to them to discover what the officers had sworn in their affidavits were untrue.

Equally somewhat misleading was a statement the Minister made in regard to the number of police officers being disciplined for their transgressions.

The Minister said that over the past three years, an average of 78 police officers have been subject to disciplinary proceedings annually, and about ten police officers have been charged in court each year, for the past three years, for criminal offences.

“We will not hesitate to take action when there is an infraction, and that is essential to maintain trust with the public and discipline within the force. At the same time, while we have to be strict about upholding the highest standards for police, we have to ensure that our analysis of officers’ ground judgments is reasonable and fair. Police officers work in high-stress and dynamic environments.”

Mr Shanmugam said, “We will not hesitate to take action when there is an infraction. And that is essential to maintain trust with the public, and discipline within the force.”

One would be given the impression that the “about ten police officers have been charged in court each year, for the past three years” were due to their actions in the course of duty.

However, when questioned by Mr Ang about whether the police officers were charged with offences in the course of their duty or their own behaviour, Mr Shanmugam had to quantify the figures that he had just proudly presented to the Parliament.

He said, “It’s for a variety of conduct, some in the discharge of their duties, some outside. The point I’m making is that the fact that they are police officers has no immunity. If they have committed an offense, they and we investigate and we find that that is a prima facie case. Where Attorney-General’s Chambers believes that it can be proven beyond reasonable doubt. Then they will be charged.”

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